A group of Arkansans who call themselves “Regnat Populus” are circulating petitions to put three ethics rule changes on the November ballot. You can read the full text in legalese here, or you can read my analysis of the three reforms on candidates and public officials below.
1. Lengthening the ‘cooling-off’ period from 1 year to 2 years. This cooling-off period is the time a former state legislator must wait before becoming a lobbyist. The intent behind this change is that, presumably, the longer a legislator has to wait to return to the Capitol to lobby, the less leverage they will have over new legislation. Another benefit of this reform might be that current legislators will be less tempted by promises of employment with lobbyist groups, therefore limiting the influence lobbyists have over lawmakers while they are in office.
I don’t think this change will have a great impact, but it is a step in the right direction and I see no reason to oppose it.
2. Banning gifts from lobbyists to legislators. Observers of the Capitol are well aware that legislators are regularly taken out to dinner by lobbyists at Little Rock’s finest restaurants; whether lobbyists’ motives are good or bad, there is an appearance of influence-buying that is unattractive.
The group has labeled this piece of the reform the “Walmart Rule,” based on the fact that Walmart employees are forbidden to accept gifts from suppliers. Banning lobbyist gifts would be a big improvement from the current state of affairs — that is, an array of free meals, available to legislators more or less on demand, the provision of which seems designed to create a sense of obligation. This is a serious problem that needs a solution. But is this reform really a solution? I am not sure.
Under current Arkansas law, legislators can accept gifts from lobbyists; in general, those gifts have to be reported to the public. Under the proposed reforms, I fear that these gifts will still take place: the change these reforms will cause is that now we simply won’t know about them. They will be forced under the radar. And since the proposed reform does not prohibit campaign contributions from lobbyists to legislators, I fear that steak dinners will simply turn into cash.
With that said, this reform should at least eliminate the majority of public dinners and other gifts from lobbyists to legislators, and those who privately violate these laws will face criminal charges if they get caught. Even our most corrupt politicians would not want to risk prosecution over a steak dinner. As a general rule, we get less of what we criminalize. Therefore, all things considered, this reform seems worthy of support.
3. Disallowing corporate and union donations to candidates. This is the part of the initiative that I am not just jumping up and down about. My questions are twofold: Do groups of people have a constitutional right to political free speech? And does a restriction on political spending for corporations and unions but not for political parties or nonprofits violate equal protection?
In my opinion, the answer to the first question is a resounding “yes,” and the Supreme Court of the United States agrees–they overturned part of McCain-Feingold in 2010, upholding the rights of groups to run political ads in favor of candidates. This includes, but is not limited to, corporations. After all, corporations are people.
Interestingly, in the text of the proposed act, the group claims support for the First Amendment:
“WHEREAS, the People of the State of Arkansas cherish the fundamental First Amendment right to freely and equally petition our public officials, and have found the risk and appearance of conflicts of interest and corruption of the political process increases when lobbyists provide gifts to public officials…”
However, as you can see, they unfortunately only apply these comments to the anti-gifting sections of the act, and not to the group contributions prohibitions.
Now, are these proposals violations of equal protection? As Richard Epstein recently asked in a great article on this topic, “what possible reason is there to deny that corporations are persons protected by the Due Process and Equal Protection clauses of the Constitution?” The Supreme Court has long held the same belief as Epstein.
An article from Reason.com has also outlined some concerns about limiting corporate speech:
“In America, if you want to organize people to do something, you form a corporation. Most advocacy organizations and citizens groups are, of necessity, nonprofit corporations. ‘[McCain-Feingold] drew no distinctions between General Motors and the ACLU,’ says Joel Gora, a Brooklyn Law School professor…”
I see many of the same problems with the third Regnat Populus proposal. At the very least, these are questions that deserves much closer analysis.
Now, undoubtedly some liberal will read this article and accuse me of standing up for “the rich” or fighting for the Koch Brothers’ right to “buy elections.” So I must ask: Why do liberals become infuriated over corporate political spending, but are eternally silent when a group of unions spend millions against conservative candidates?
My position is consistent and freedom-friendly: I believe all groups and all people should be able to spend their money as they see fit. I see no constitutional merit to prohibiting organizations or groups of people from speaking with their money. After all, it is theirs; this is America.
I support the first component of the reforms proposed by Regnat Populus, I am generally supportive of the second, and I am against the third. Unfortunately, assuming the measure reaches the ballot, all three of the reforms will be packaged together. Arkansans will have to throw the baby out with the bathwater or keep them both.
With that said, as with most laws, the corrupt will find ways around them or break them without any retribution. The fate of our state hardly rests upon the success of this initiative.
Arkansas certainly need ethics reform, but I tend to believe that the causes of our problems are much more complex than Regnat Populus’ answers suggest. While I do believe that the first two reforms are generally sound, I fear the third reform will significantly stifle free political speech. Therefore, I think Arkansans should reject this particular initiative and work towards a more freedom-friendly, constitutionally sound proposal for 2014.